The new Courts Law essay comes from Alexandra Lahav (U Conn), reviewing Amalia Kessler, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture (Yale University Press). Lahav focuses on the way in which equity practice relied on a non-adversarial, judge-centered system (something Kessler has written about before) and how adversarialism arose from that.
Posted by Howard Wasserman on July 19, 2017 at 11:11 AM
Those of you who pay attention to the politics of firearms might be familiar with either H.R. 38 or S.146, the House and Senate versions respectively of the Concealed Carry Reciprocity Act of 2017. If you are a federalism nerd (I plead guilty), then you might also be familiar with the Full Faith & Credit argument in favor of this bill, a theory championed by Stephen Sachs, Randy Barnett, and Will Baude, based on Stephen Sachs’ erudite and creative Virginia Law Review piece analyzing the history of Article IV’s FF&C clause in the pre-constitutional period, the ratification debates, and the congressional debates of the early republic.
You might not, however, have thought very much about whether or not either the CCRA or Sachs’ Theory of Congress’ Article IV, section 1 power present any practically sensible theory of federalism. Should Congress have unlimited power to declare that any state’s laws, licenses, permits, and so forth, can govern conduct in other states? If not, then how should the Constitution limit Congress’s power to define the effects of one’s state’s rules and actions in other states? Outside of DOMA (where the issue had its fifteen minutes of law review fame), the practical justifications for Congress’ Article IV power has not been discussed much by law reviews or judicial decisions, simply because Congress rarely uses its Article IV power.
We should, therefore, be thankful for both CCRA and Sachs for giving us a great opportunity to think about this perplexing issue. After the jump, I will offer my reasons for thinking that, at least as used to justify the Concealed Carry Reciprocity Act, Sachs’ theory is not a very persuasive way to keep Congress’ powers within reasonable bounds. The problem springs from what I take to be a more general problem with originalism (whether the “New” textualist version of Solum & Co. or the older more intentionalist variety): The focus on very specific semantic or historical sources does not leave much room for explaining why the theories it unearths make any pragmatic sense. Sachs’ theory (if I am reading it correctly) seems to give Congress virtually unlimited power to declare the substantive “effect” of states’ “public acts, records, and judicial proceedings” in other states. By allowing Congress (for instance) to export libertarian “concealed carry” rules to (for instance) New York City, Sachs’ view of Article IV would destroy any meaningful limits on Congress’ power to impose a single, uniform law on the nation, even w.r.t. areas like criminal law where the needs for subnational diversity would seem to be obvious. It is impossible for me to imagine why the U.S. Constitution’s framers and ratifiers who were deeply skeptical of national power would adopt such a view — but, even if my imagination were better, it is absurd to think that we should live under such a preposterously centralized regime without a thought about the practicalities of such rules for no better reason than what a bunch of lawyers said about Mills v. Duryee between 1813 and 1822.
1. What does the Concealed Carry Reciprocity Act of 2017 provide?
As an entry point into the practical problems with Sachs’ theory, it is useful to start with the Concealed Carry Reciprocity Act, becauuse the CCRA provides a good illustration of senseless centralization. The CCRA provides that anyone is entitled to carry a concealed handgun in any state that authorizes any sort of “concealed carry” permit if such a person either (1) has a “concealed carry” permit from any other state or (2)”is entitled to carry a concealed firearm in the State in which the person resides.” Thus, a resident of a libertarian state that hands out “concealed carry” permits with minimal oversight is entitled by the CCRA to carry their concealed handgun into a state that heavily regulates “concealed carry” permits, allowing such permits only under very limited circumstances. In effect, such a migrant would not only carry a gun with them wherever they traveled but also their domicile state’s gun laws as well.
2. Why is the rule of the CCRA ridiculous?
Pause for a moment to imagine the strangeness of such a choice-of-law regime. Two people carry identical handguns into Times Square. One person is from Texas, where oversight of concealed firearms is minimal. The other is a New York resident, where the right to a “concealed carry” permit is much more restricted. Under the CCRA, the Texan would be absolved of the normal duty to comply with the penal laws of the territory where she is present: She would carry Texas’s libertarian regime with her like a little personal rain cloud floating over her head. The New Yorker would still have to obey New York law. In effect, two sets of criminal laws would vie with each other on precisely the same street corner. The NYPD could collar their own resident for illegal possession but would have to let the Texan go.
3. What’s the Article IV, section 1 argument that Congress can export any state’s rules to all other states in the name of “full faith and credit”?
To justify this congressional power to export one state’s legal regime into the territory of another, Sachs, Baude, and Barnett rely on Article IV, section 1, which confers on Congress the power to “prescribe the manner in which [other states’ public] acts, records, and proceedings shall be proved, and the effect thereof.” Apparently, they take the position that Congress has pretty much unlimited power to define what “effect” one state’s laws should have in the territory of another. Their suggested statutory language, for instance, seems to endorse the view that Congress can require one state to give full faith and credit not merely to a “concealed carry” permit issued by another state but also to the “public acts” of other states. Suppose, for instance, that I travel to NYC from a “constitutional carry” state like West Virginia where individuals have the right to carry a concealed firearm if they have the right to bear arms, hidden or overt, at all. Even though I have no specific permit with my name on it authorizing me to bear any weapon, my West Virginia driver’s license suffices to allow me to defy NYC’s rules on concealed carry.
This sort of logic goes far beyond gun permits. If Congress really has an Article IV power to authorize any person to export their state’s libertarian regime to other states, then Congress could decree that a Texan could move to NYC from Houston (where there is no zoning) and demand that the New York City Planning Commission give “full faith and credit” to her Texas property rights, which allow a skyscraper to be built anywhere permitted by covenants and nuisance law. Congress could likewise confer on Nevadans the right to hire prostitutes in Mississippi or give Coloradans the right to toke up a blunt on the streets of a village in Alabama.
Did the framers of Article IV, section 1 really believe that Congress could confer any effect whatsoever on the “public acts” of one state in the territory of all the others? So far as I can tell, Sachs’, Baude’s, and Barnett’s position contains no limit on Congress to avoid such absurdities. To be fair, Sachs’ article (at page 1207, note 27) expressly (and wisely) disclaims any view about Congress’ power to require each state to enforce the “public acts” (meaning statutes) of other states: Sachs is focused only on “records” and “judgments.” Sachs’, Baude’s, and Barnett’s letter does not contain any such limit. If one is a textualist invested in “original public meaning,” however, it is difficult to explain any distinction between Congress’ power to define the effects of a permit and the effects of a statute: Both are just nouns in the same sentence of Article IV, section 1. Moreover, putting the text to one side, it is not obvious why it makes any sense to give more extra-territorial effect to a permit than to a statute. Suppose that a state automatically hands out “concealed carry” permits to anyone who has reached the age of 18 and is otherwise eligible to bear arms. Why should this bit of individualized paper be entitled to more legal weight in another state than a general statute enforcing a “constitutional carry” regime without requiring individual permits?
4. Does Sachs’, Baude’s and Barnett’s view make any functional sense?
From my decentralization-loving perspective, Sachs, Baude, and Barnett have announced a congressional power that seems senseless from any functional point of view. Most criminal laws follow the choice-of-law rule of lex delicti because the harm against which they protect is territorial. For that reason, the SCOTUS has long held that each state is normally free to enforce its own laws in its own courts if the underlying conduct bears some substantial connection to that state’s citizens or territory. The idea that the criminal (or zoning, or liquor, or other regulatory) measures of one state should be given extra-territorial reach into the territory of another state is so absurd that no one has bothered defending such a view — at least, not until Sachs, Baude, and Barnett wrote their letter to Representatives Amash, Hudson, and Gowdy.
If the text of the Constitution were crystal-clear that Congress had such an utterly unlimited power, then I guess I would swallow hard and enforce the letter of the law. Absent such a plain statement, however, I am inclined to abandon formalism and ask whether any sensible framer would ever dream of conferring such a power on any national legislature. Given its originalist and historicist commitments, there is not a word about such practical considerations in Sachs’ article. Instead, Sachs gives us a really interesting narrative about how politicians and lawyers thought about Mills v. Duryee between 1813 and 1822.
Don’t get me wrong: I have an antiquarian lawyer’s love for this stuff. Sachs’ article is a fascinating read. But I cannot imagine any republic (except, perhaps, a republic consisting solely of law profs and historians) consenting to being governed by such arcana, when the practical consequences of the congressional power that is apparently being defended are so odd. Surely there ought to be a page or two spared for the question, “does Congress’ power to prescribe the effects of each state’s ‘acts’ have any limits consistent with some sort of functionally defensible theory?”
Posted by Rick Hills on July 16, 2017 at 08:35 PM
Thanks, Congress for taking unlimited power to declare state’s laws.
Posted by: gunsafely | Jun 22, 2018 2:09:44 PM
I am NOT persuaded that the Full Faith and Credit clause is the proper source of Congressional power to require states to honor other states’ gun-carrying permits.
However, I think Prof. Hills’ examination of the issues is slightly unclear. The question revolves around a critical distinction between acts and persons.
All states allow some private persons* to carry concealed guns under most circumstances (e.g., typically excluding carry into prisons, while drunk, etc.). Some states structure their gun-carrying laws mainly as prohibitions to which exceptions are made for permit-holders, and others chiefly as permissive regimes from which some persons (e.g., felons) are excluded. Either way, the mere act of carrying a concealed gun in public is generally not a crime for a person who has a permit.
Many states issue gun-carrying permits only to their residents, or residents plus a few others. Many states (though notably not some of the most populous, like California and New York) honor permits issued by some other states, but under a bewildering variety of essentially-arbitrary standards. For example, Wyoming does not issue permits to non-residents and does not honor permits from Washington State (which are issued after a fingerprint-based background check), but a Washington resident intending to visit Wyoming may obtain a non-resident permit from New Hampshire (by mail, upon a merely name-based background check) which Wyoming does honor!
Prof. Hills’ remarks seem to give the impression, perhaps inadvertently, that some Congressmen want to allow, e.g., Texas residents a form of extraterritoriality with respect to the criminal laws in other states. That seems incorrect to me. Forcing states to honor other states’ gun-carrying permits with respect to persons is not the same as forcing them to allow non-residents to commit criminal acts such as murder or assault or even (for example) carrying a gun into a prison. Those states which currently honor gun-carrying permits from other states all enforce exactly the same conditions and restrictions on gun-carrying against both residents and visitors.
To revisit the obvious analogies, every state generally makes driving a car on public roads a crime for persons who lack a license. But driving is not malum in se: the licensing laws are aimed at disqualifying untrustworthy persons (e.g., children, convicted drunks, those unable to pass simple skill tests). There is general agreement on disqualifications from driving so states are pleased to honor visitors’ driving licenses from other states (and even many foreign countries!) though they are issued under somewhat different rules. Visiting drivers are still expected to obey local rules of the road (lane use, speed limits, etc.).
Carrying a concealed gun is not malum in se either, and not a single state thinks it is. Empirically all the states do a good job of disqualifying untrustworthy persons from gun-carrying permits (in every single state, gun-carry permittees are statistically less likely to be arrested for or convicted of crimes than even sworn police officers). States which do honor visitors’ permits from other states enforce the same criminal laws and time/place/manner gun-carrying rules on both resident and visiting permittees.
States which refuse to honor visitors’ gun-carry permits are really applying a form of local favoritism or protectionism which is not justified by public safety concerns. Much more importantly, states which refuse to honor visitors’ gun-carry permits equally with residents’ permits deny visitors the right which residents enjoy to defend themselves lawfully against criminal attack– and so deny visitors the equal protection of the laws to which the Fourteenth Amendment entitles them.
I think Congress may force states to honor visitors’ gun-carry permits issued by other states equally with the permits they issue to their own residents, either under the Second Amendment and the Privileges and Immunities clause (Article IV) or under the Privileges or Immunities and Equal Protection clauses of the Fourteenth Amendment. I think Congress could rely on the Full Faith and Credit clause to prescribe rules by which states would recognize valid gun-carrying permits from other states.
Exercising Full Faith and Credit clause power Congress might, for example, prescribe a standard format for proof of a gun-carrying permit. Would Full Faith and Credit clause power let Congress prescribe minimum qualifications (say, a fingerprint-based background check) for gun-carrying permits which other states would have to recognize in a documentary sense, if they did (or did not) propose to honor them? I am not sure about that, though I think it possible. But I think even setting qualifications for interstate-valid permits under the Full Faith and Credit clause would not by itself force states to treat valid (in an documentary sense) permits of non-residents as equivalent to residents’ permits; that is, make states honor non-resident permits. To do that, I think Congress must (and could) exercise other powers the Constitution confides to it.
(Perhaps Congress could use Full Faith and Credit power to reduce the confusion around which states’ permits are valid in those other states which choose to honor any non-resident permits (e.g., minimize the Wyoming versus Washington and New Hampshire mess).)
I think the question of honoring non-resident licenses for doctors, etc. can be distinguished pretty effectively. Professional licensing is (in theory**) about regulating the provision of services which few people are qualified to perform safely and which the licensees intentionally perform for (or upon) their patients or clients all day long. Employers or clients of licensed professionals are expected to examine and rely upon their credentials, and might not be able to validate credentials issued by faraway authorities. Licenses to drive a personal car on public roads or to carry a concealed gun are used to regulate individual behavior which most people are qualified to perform safely and which affects persons other than the driver or carrier only incidentally. Non-professional driver licenses or gun permits are examined only upon suspicion of wrongdoing. States have a much stronger interest in restricting the qualifications and credentials of persons performing dangerous professional services than of people engaged in unremarkable private activities.
(I use “incidentally” in the formal sense– not to elide the potential harm a misbehaving driver or gun-carrier might conceivably do, but to emphasize that the public-safety risk is statistically quite small. It is larger for professional actors (e.g., truck drivers, security guards)– which is why they are more intrusively regulated. It is miniscule for permitted gun-carriers.
(Indeed, simply carrying a gun does not threaten the public. The risk to the public is that some gun-carrier will draw a gun without good cause and unjustifiably shoot someone with it, an act which permittees almost never perform, though persons universally considered unqualified to obtain permits (that is, criminals) occasionally do. Criminals prepared to commit murder are not, sadly, deterred by gun-permit laws.)
Although it doesn’t matter much, I did find Prof. Hills’ discussion of Texas and New York gun laws a bit confusing. Texas requires each applicant for a gun-carrying permit to pass background checks, complete a formal training course, and pass both written and practical (live-fire) exams (see https://www.dps.texas.gov/RSD/LTC/faqs/index.htm ). However, New York City police merely require each applicant for a gun-carrying permit to tender a suitable bribe (see https://www.nytimes.com/2017/04/25/nyregion/3-former-police-officers-and-a-former-prosecutor-are-charged-in-widening-corruption-investigation.html?_r=0 ). (Even without the bribe, New York only requires background checks, not training or examination of applicants.) Exactly how is Texas’ “oversight of concealed firearms” “minimal” while New York’s is “much more restricted?” The types of places where even permittees may not carry guns are similar in both States, as are the basic rules of self-defense and the laws against brandishing, assault, battery, and murder.***
*The present discussion is not about various categories of police officers or security guards.
**Of course most state occupational licenses are just protectionism for politically-successful rent-seekers (florists, anyone?). But the mixed cases such as medical licensing in which there really are public-safety considerations will ensure that the Supreme Court never pronounces occupational licensing laws categorically unconstitutional.
***The critical difference between New York or California(!) and Texas is that New York and California invest local politicians with practically unreviewable discretion to issue or withhold gun-carrying permits, so those politicians issue permits strictly as favors, often in return for bribes. Texas applies objective standards for permit issuance and has no favoritism or bribery problems. Again, standards for the public conduct of permittees are virtually the same in every state. The question isn’t about acts, it’s about persons.
Posted by: Veracitor | Jul 25, 2017 6:10:32 PM
“If your … license to practice medicine [has] to be recognized in every state”
I don’t think this is true.
There’s no reason it shouldn’t be, mind you, given physician licensing requirements are considerably more uniform across the states than, say, attorney licensing requirements.
Posted by: concerned_citizen | Jul 21, 2017 3:59:17 PM
Regarding the comments from Biff and M.Rad, I recommend Paul Finkelman’s “Imperfect Union,” a monograph on comity and slavery. The bottom line: There was complete dissensus as to what either Article IV’s FF&C clause or it’s P&I clause required of states regarding either free blacks (moving South) or slaveowners (moving North).
Jeffrey, thanks for referring me to your article. I’ve now had a chance to read it and am convinced that the history leans as closely in your direction as in the direction of the “evidentiary” theory. Perhaps my reaction, however, is colored by my prior: The notion that anyone prior to 1865 thought Congress had an unlimited power to do anything strikes me as implausible. Southerners, especially between 1831 (Nat Turner’s Rebellion) and the Civil War jealously guarded state prerogatives, ceding the bare minimum to Congress even to enforce the Fugitive Slave Clause or ban “incendiary” (i.e. Abolitionist) literature from the U.S. mails. Calhoun challenged the legality of the Department of the Interior in his last years. The notion that they would have accepted Stephen Sachs’ theory strikes me as …unlikely.
My bottom line is that the Constitution’s text and history is too under-specified to answer these sorts of questions at the level of granularity that these sorts of disputes require. It was deliberately written to be ambiguous on these sensitive issues, to overcome opposition that otherwise would have put its ratification at risk.
That’s why I am not an originalist of either the intentionalist or semantic variety.
Posted by: Rick Hills | Jul 21, 2017 5:29:32 AM
I do not think that FF&C protected slave owners in NY. I think there was a doctrine that merely passing through free territory does not free a slave, as opposed to living in free territory, which was assumed, until Dred Scot, to make a slave free.
If it was FF&C that protected slave owners passing through NY, it should protect them if they moved to NY also, thus making NY (and every state) a slave state.
Posted by: biff | Jul 21, 2017 12:59:22 AM
Heh, the 2A complicates using concealed-carry reciprocity as a vehicle to examine the limits of FF&C, but I think I have an historical example that is just as hot-button but without 2A complications: the interstate transport of slaves. Slaves would not be freed merely due to being transported through free states, and indeed the Port of New York, being at the center of a hub-and-spoke coastal shipping system, often had such chained-up “cargo” on layover between two ports in the South, to the great consternation of abolitionists there. Slaveholders in 1850 seemingly had more protection under FF&C than gun owners today.
Posted by: M. Rad. | Jul 20, 2017 11:10:57 PM
“See Corfield v. Coryell.”
How much is that good law per recent P&I Clause case law?
Posted by: Joe | Jul 19, 2017 1:05:38 PM
I am also confused by how any of this is really “originalist” in an original public meaning sense. To me, the text is clearly “underdeterminate,” meaning that the original public meaning is consistent with various different meanings. Although post-ratification history (which is what Sachs’ paper is all about) is certainly relevant when construing the text, it is not necessarily decisive. I think Rick (and my paper) are therefore correct to look beyond history to construe FF&C.
Posted by: Jeff Schmitt | Jul 19, 2017 8:46:30 AM
I completely agree with Rick’s post, for the reasons I explain in the following article: A Historical Reassessment of Full Faith and Credit, 20 GEO. MASON L. REV. 485 (2013). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2015509
In my view, Congress’s power to prescribe the effect of state acts was historically understood to be limited by territorial-based principles of state sovereignty. From my reading of various eighteenth century sources, Congress had no power to make the laws of Virginia, for example, have substantive effect in New York.
For me, the most persuasive evidence that Congress’ power is quite limited is the following: It was a core belief of virtually everyone in the antebellum era–from Lincoln to Calhoun and McLean to Taney–that Congress had no power to establish or prohibit slavery within the states. An yet, wouldn’t Sachs’ view of full faith and credit practically give Congress just such a power?
Here is a summary of this point from the intro to my paper: “The second limitation–territorial-based jurisdictional principles–provided a much more meaningful restriction on Congress’s power to prescribe the effect of state acts. Under prevailing concepts of jurisdiction, in most situations state acts were not thought to have had any binding effect outside of the territorial boundaries of that state. While states often recognized and applied the law of other states, doing so was thought to have been a voluntary act of comity. These jurisdictional limitations on the reach of state acts were believed to have been dictated by basic principles of justice and state sovereignty. To avoid violating these principles, Congress was able to give extraterritorial effect to state acts only in civil cases and only with the consent of the parties (though such consent could be implied). Moreover, Congress had no power to alter the common law rule that a judgment rendered without valid jurisdiction was void. Although these jurisdictional rules were not derived from any specific provision of the Constitution, the Constitution was viewed very differently at this time, and basic legal concepts such as jurisdiction were generally thought to supplement and help define Congress’s enumerated powers.”
Posted by: Jeff Schmitt | Jul 19, 2017 8:41:34 AM
“Since the comments here seem to be delving into a Second Amendment debate and away from the issue at hand”
The very first word in the title of the post is “firearms”. If you start a blogpost with “speech” and get angry when people talk about the first amendment, you’re asking too much.
If you think the bill of rights doesn’t protect individual civilian rights, just say so.
Posted by: Gun Owners of America | Jul 19, 2017 3:26:41 AM
I don’t think the fishing license example works (or at least it’s more complicated than the present example). Fish, like oysters, belong to the people of the state and a state can treat out of state residents differently. See Corfield v. Coryell. Maybe Congress could still override a state’s interest in its own property, but that seems to be opening a whole other can of worms entirely.
“A broad reading of the Commerce Clause would make it constitutional (it is restricted to firearms that have been shipped or transported in foreign or interstate commerce).”
It wouldn’t even really have to be a particularly broad reading. Forget the gun. Simply by traveling to another state the carrier is engaging in interstate commerce.
Posted by: jph12 | Jul 18, 2017 11:48:16 AM
Since the comments here seem to be delving into a Second Amendment debate and away from the issue at hand, I thought it could be useful (to myself at any rate) to imagine a similar scenario on a much less politically charged topic.
Imagine you have two states, both of which require fishing licenses for anyone who wishes to fish on public land.
State A has minimal, if any, regulations on fishing and issues licenses to anyone who shows up and pays the application fee. State B has very strict fishing regulations, based on a history of ecological problems in the state, that limit the size and number of fish that can be hunted (among other things). They issue licenses only after applicants demonstrate an in-depth understanding of the state’s fishing regulations and the needs of its ecosystem.
So now the questions. 1) Could Congress constitutionally pass a law saying that any state that requires a fishing license must treat licenses acquired in other states as equivalent to those issued by the state itself? 2) Could Congress constitutionally pass a law that says that states must only enforce the fishing regulations against a fisher that were propagated by the state that fisher’s license came from? In other words, if State B only allows you to catch 3 fish a day, could a resident of State A who is licensed in State A, but fishing in state B, catch unlimited fish without any legal consequence?
The answer to 1 under Profs. Sachs, Baude, and Barnett’s view seems to be a pretty clear yes, and I can see and understand those arguments. But I don’t see a way to make a principled distinction between 1) and 2) under the professors’ theory, and 2) seems to be several steps too far. Can the Constitution really be read to allow Congress to delegate its national lawmaking authority to the least-regulatory state in the nation? Because that’s essentially what this creates – a system where the most permissive state in the nation gets to set the de facto rules for every state.
That doesn’t seem to purport to my understanding of federalism in the Constitution, but I am not an expert in this area and it’s possible my understanding of federalism is completely at odds with what is plainly Constitutionally required. The professors in question make a good argument that’s so. Still, I think the issues are easier to see and debate when we’re not dealing with the contentious gun issue at the same time.
Posted by: J | Jul 18, 2017 10:41:11 AM
“you don’t need the permit to exercise the free speech, but to hold an event”
The event very well might be “the” free speech at issue, the particular assembly that is being exercised to express the speech in question. The restraints here very well might be too strict, but they are long accepted law and on some level are practicably necessary.
The reach of the ability to carry in public arose in a 9CA case and I do think at some point SCOTUS will have to handle it directly.
Posted by: Joe | Jul 18, 2017 10:04:43 AM
I note that there are other constitutional theories to defend the proposed law. A broad reading of the Commerce Clause would make it constitutional (it is restricted to firearms that have been shipped or transported in foreign or interstate commerce). If it goes to the Supreme Court the liberal justices would presumably have to uphold to law on that ground so the FF&C argument would only have to convince one conservative justice.
Posted by: Jr | Jul 18, 2017 7:40:24 AM
^ True, I should have been a bit clearer. When I said transport concealed weapons, I meant across state lines. I think the second part of my post makes clear that another question is whether it is constitutional to require state licenses for concealed carry, since one already has the constitutional right to ‘bear’ arms.
Posted by: YesterdayIKilledAMammoth | Jul 18, 2017 6:33:27 AM
“While 2A gives citizens the rights to possess and “bear” arms, that doesn’t necessarily mean they have the right to transport concealed weapons.” YIKAM
True. Just like you don’t have a right to publish a book or cast a ballot anonymously, or have an abortion without telling your parents and/or spouse; you don’t have a right to carry a weapon without announcing it to everyone around you, i.e., carrying it openly.
Posted by: See Through Backpacks | Jul 18, 2017 5:27:23 AM
Dick and Clapper laid down rules for invalidating state choice-of-law rulings that proved almost completely unadministrable. The Supreme Court’s caselaw on constitutional limits on state choice of law since then has a certain lost-in-the-wilderness flavor. There may be areas where purposivism without a clear sense of purpose can prosper; this isn’t one of them.
Posted by: James Grimmelmann | Jul 17, 2017 10:34:17 PM
^ The parade example is apples and oranges, since you don’t need the permit to exercise the free speech, but to hold an event. The point about 2A and concealed weapons is quite right, though. While 2A gives citizens the rights to possess and “bear” arms, that doesn’t necessarily mean they have the right to transport concealed weapons.
However, the better question is whether requiring licenses to carry concealed weapons is actually constitutional since 2A gives one the constitutional right to carry and “bear” arms. It seems the most that could be done is that states could outlaw concealed weapons if they wish in the same way that territorial towns in the Old West used to outlaw carrying weapons in town.
Posted by: YesterdayIKilledAMammoth | Jul 17, 2017 8:37:58 PM
“If you don’t need a license to speak or worship because the first amendment guarantees those rights, then you don’t need a license to carry a gun or get a trial by jury–because those are also protected by amendments.”
The Second Amendment has certain requirements that don’t apply to the First Amendment. For instance, children and felons have more rights under one than the other. The 2A has certain criteria where a “license” is acceptable. It also begs the question, of course, about the reach of concealed carry rights, which under Heller itself was assumed to be different at least to some degree. There is not some complete overlap.
And, you sometimes need a permit for First Amendment purposes, such as a parade or march.
Posted by: Joe | Jul 17, 2017 7:22:05 PM
If your driver’s license and license to practice medicine have to recognized in every state, so does your license to carry a weapon.
If you don’t need a license to speak or worship because the first amendment guarantees those rights, then you don’t need a license to carry a gun or get a trial by jury–because those are also protected by amendments.
The point is that the second amendment and the right to keep and bear arms are not exceptions. Whatever rules apply to other rights also apply to this right.
Posted by: NRA | Jul 17, 2017 5:41:12 PM
So, about my question, it sounds, if I can very crudely summarize, like you would have the Court read the FF&C power as bounded by something that looks sort of like existing choice-of-law common law. Perhaps an argument for that approach, other than that giving Congress boundless power to enact choice-of-law gerrymanders in certain areas where it wants to create races to the bottom (or the libertarian top, depending on how one sees things) is pragmatically loony, would be a common-law-constitutionalist argument. As in, centuries of common law in this country about criminal choice of law and locus delicti bar Congress from creating some contrary rule. That might do more for some people and seem a little less like “making it up” than just arguing from the pragmatic craziness of the alternative.
I have to say, I’m confused by Sachs’s comment, because it starts by accepting your non-originalism, and then claims that even so, one just has to offer a better legal explanation for deviating from the FF&C’s ostensible original meaning than offering pragmatic arguments against it, and needs to show that something “new has happened” since the Constitution’s ratification. But what more does a non-originalist of a certain stripe need? The following seems like a pretty cognizable argument for a non-originalist: whatever originalists say about the Fourteenth Amendment, Brown, and gender discrimination, they have a pretty hard time showing us what about the original meaning of any part of the Constitution forbade federal racial discrimination or gender discrimination. Nevertheless, we would all like the Constitution to forbid federal racial and gender discrimination. Now, we could have an Ackermanian theory about some constitutional moment that amended the Constitution on this point without formally doing so, but I think most non-originalists, without adopting that theoretical apparatus, will just say, more or less, that today the Constitution must be read to forbid federal racial and gender discrimination because an alternative interpretation would permit rank injustice, without claiming that something “new has happened” since the ratification of the Fifth Amendment beyond a new appreciation that the sorts of laws the framers failed to ban are immoral and anti-democratic and so forth.
Posted by: Asher Steinberg | Jul 17, 2017 5:32:31 PM
Surely, Joe is right: The devil is in the details. I’d say that Congress could require states to give sojourners a reasonable period of time during which they can register their cars, firearms, or other personalty in accordance with the local laws. But I’d read into the Article IV section 1 power an implied limit that Congress must act as an honest broker among the states and cannot extend the effects of state laws way beyond the bounds of reasonable comity merely because Cpongress happens to like such laws.
James G., are you saying that Brandeis did not indulge in open-ended purposvism in Clapper and Dick or that these decisions, being wrongly decided or poorly reasoned, are bad role models for constitutional interpretation?
Posted by: Rick Hills | Jul 17, 2017 4:26:35 PM
Clapper and Dick don’t exactly strike me as compelling arguments for open-ended purposivism.
Posted by: James Grimmelmann | Jul 17, 2017 4:16:16 PM
I think the motive for this was the case of an unfortunate woman stopped on an Interstate while passing through New Jersey. She tells the officer that she has a concealed carry permit and a weapon in the car (all obtained perfectly legally). However, it was in contravention of New Jersey law and they threw the book at her.
Posted by: Art Deco | Jul 17, 2017 2:40:23 PM
I understand the attempt is setting for broad principles in respect to a specific proposal and a response to a specific argument.
But, more broadly, I think concern for the rights of interstate travelers is stronger when dealing with carrying a gun interstate as compared to references to prostitution or property rules back home applied to where you are at the moment. As to the latter, a skyscraper has more permanence and local effects than rules regarding carrying a gun temporarily.
The logic of prudentially applying the rules here, including looking at the Constitution as a whole, is appreciated. I think in fact the Second Amendment (though changed somewhat by the Fourteenth) arguably encourages respect for local discretion in this area more than others. Unfortunately, such federalism concerns were not addressed very well when the matter was addressed in Heller and McDonald. OTOH, individual rights in this area are broader as compared to some other license.
I respect some national law that sets forth some sort of floor here — e.g., a person is allowed to travel thru N.Y. with a licensed disabled firearm in the trunk of one’s car and if they are stopped, they cannot be arrested because local law is much more strict there. The devil there would be the details.
Posted by: Joe | Jul 17, 2017 1:37:08 PM
Stephen writes:
“The Constitution could have dealt with these [conflicts of law] problems in different ways” and that one way was to give federal courts (a “neutral forum”) the power to hear interstate cases, relying on the prevailing rules … until a neutral legislature [aka Congress] supplies some other rules instead.” As for constitutional limits on this power of Congress to declare the “effects” of state laws, Stephen concludes: “there’s also no evident limiting principle, other than the ones we make up.”
I guess I agree with tha last point — with the proviso that we pragmatists believe that the Court is always making up such limits, that, indeed, making up limits is how the SCOTUS normally proceeds as far as the Constitution is concerned. I earlier posted on why this “purposivist” attitude towards the Constitution makes sense given the method by which it was ratified (up or down vote on an unamendable draft prepared in secret by persons not authorized to do so): http://prawfsblawg.blogs.com/prawfsblawg/2017/06/does-article-viis-up-or-down-process-weaken-the-case-for-constitutional-textualism-ie-new-originalis.html
If “textual” mandate is needed here, I’d assume that the idea of the enumeration’s presupposing something not enumerated could serve — with the proviso (hardly heroic) that that “something” ought to make some functional sense. In Bradford Elec. v. Clapper and Home Insurance v. Dick, the Court during the 1930s fabricated without any real textual guidance some limits on states’ extending their own laws “extra-territorially” using the Due Process and FF&C clauses. I do not see why they could not do the same with Congress’ power to prescribe “effects.” If such open-ended purposivism was good enough for Brandeis (who wrote both Dick and Clapper), then I guess it is good enough for me.
But all of these foundational concerns, of course, require another post.
Posted by: Rick Hills | Jul 17, 2017 1:19:04 PM
Maybe the Originalist “hey, Abbot,” but what about the 10th Amendment? A simple truism, as they like to say?
I’m resisting the urge to respond more fully until I’ve actually read the journal article.
Posted by: Crispian | Jul 17, 2017 12:31:47 PM
I can’t speak for Will or Randy, but I appreciate Prof. Hills’s careful read of our letter, and his kind words for my paper on the Full Faith and Credit Clause. I’m puzzled, though, by his approach to constitutional argument.
Hills says he’s “not an originalist”–which might in time be forgiven! Yet his target isn’t the original Constitution. He doesn’t claim that anything new has happened in the centuries *since* the Constitution’s adoption to shrink Congress’s effects power, much less to take it away. Maybe Congress never had such a power; that’s a respectable (and originalist) argument to make. But if it did then, and if it doesn’t now, there ought to be a better legal explanation than just what’s good or bad about concealed-carry, or “pragmatic” arguments about the best possible federal regime. Federalist ideal theory is useful, but one can’t call it U.S. constitutional law without first taking a view on what the U.S. Constitution actually did.
Any federal system has to have a way of deciding what each state gets to decide. Do they have to let you drive with an out-of-state license? What if your car has only a back plate, but local law requires front plates too? What if your windows are legally tinted to avoid the Texas heat, but they’re too dark for the law-enforcement needs of Minnesota? What if the formalities required to make a valid will are different in the state of the decedent’s domicile, or where the will was signed, or where the property is located? Who sets the duties of an out-of-state corporation to local stockholders, or the custody rights of a foster parent taking her family on a cross-country trip?
So long as our choice-of-law rules look to anything other than territory, there’s always the possibility of two sets of laws vying with each other in the same place. Maybe it’s a bad idea to let people carry concealed weapons, or to let a lawful permitholder carry them across state lines. (Our letter doesn’t speak to the bill’s merits, on which I’m professionally agnostic.) But the difference between that question and these others is one of degree, not of kind.
The Constitution could have dealt with these problems in different ways. It could have let each state decide for itself, creating the potential for endless fights over choice of law. Or it could have written out a detailed choice-of-law code in Article IV, or have fixed the prevailing rules in constitutional amber. Or it could have allowed for a neutral forum to hear interstate cases, relying on the prevailing rules (and applying state laws “in cases where they apply”) until the states can agree on their own, or until a neutral legislature supplies some other rules instead.
I think there’s good evidence it did the latter—that “Acts” included the acts of state legislatures, and that Congress’s power to “prescribe * * * the Effect thereof” referred to their substantive effect, not just their effect as evidence in court. Thus, Congress might let out-of-state plaintiffs seize local property in execution of another state’s judgments (as Madison suggested), or let debtors cancel their local debts based on another state’s insolvency acts (as Wilson proposed), or let bail bondsmen or estate administrators exercise their state-conferred powers across state lines (as was soon proposed in Congress). Maybe this kind of power was the wrong choice at the time — or maybe it responded to concerns we no longer see as pressing, sort of like the Duty of Tonnage Clause. But my read of the evidence is that this is the choice that was made.
Hills is right that this is a pretty broad power, and I agree that it’s surprising to find it in a rarely-used clause of Article IV. (I was surprised!) All else being equal, that would be a reason to wonder if this reading is too broad, if some narrower power was conferred instead. But there’s also no evident limiting principle, other than the ones we make up. The Constitution’s only requirement is one of evenhandedness: as the Clause specifies, these have to be “general Laws.” That’s not so bad, as this is a near-perfect topic for political safeguards: Congress is composed of representatives elected from all the states, and of senators equally drawn from each of them (and, at the time, directly chosen by state legislatures). If they want to agree on whether state concealed-carry permits can work across state lines, they can. The Constitution also lets Congress levy unfair taxes or declare unjust wars, so permit reciprocity may be the least of our problems. And the very fact that Congress has let this power gather dust, after toying with it soon after the Founding, suggests that the political safeguards here are pretty strong.
Instead, Hills would have the courts strike down properly enacted statutes based on whether Congress’s solution lines up with a preconceived notion of state interests, derived not from the Constitution or preexisting legal rules but from some other (and unspecified) source. That might well mean striking down the few efforts Congress has already made. Can we really say that the state where a mother and child live has no greater interest in their custody rights than the state they left five months ago? Or that the state whose family courts are asked to enforce a child support order has no greater interest in its interpretation or in the statute of limitations than the rendering state? (Even a driver’s-license reciprocity act would be in danger: surely California’s interest in its own roads is greater than Nebraska’s interest in allowing licenseholders to drive there!)
There’s no rule of law requiring that the Constitution has to make sense, any more than the tax code does. And weighing “pragmatic” concerns above “semantic” ones, as Hills proposes, is a gentle way of saying that we should ignore the cost-benefit decisions that other people may have written down in favor of the ones that he’s writing down now. Maybe Hills’s interest-based approach is the best way to go; but I don’t think he establishes that it was made law by the adoption of the Constitution, any more than by the enactment of ERISA or of the Telecommunications Act of 1996. If Hills thinks it’s a good idea, he’s welcome to persuade two-thirds of each House and three-fourths of the states to agree. Otherwise, “that’s just, like, your opinion, man.” There are lots of good ideas in the world, and unfortunately few of them have been yet enacted as part of the Constitution of the United States.
Posted by: Stephen Sachs | Jul 17, 2017 11:30:45 AM
Asher, the scope of Congress’ power to define “effects” under Article IV, section 1 is a mystery that Congress’ inaction under that constitutional provision has blessedly relieved me from ever being obliged to solve. Despite my kibitzing, hats off to Sachs for trying to offer a solution.
Here are four quick observations that you can apply to the PKPA and similar statutes:
1). I suppose that a “pragmatic” as opposed to “semantic” solution would limit Congress’ Article IV power by requiring that the states the acts of which are given FF&C by federal statute must have an interest in having their laws apply at least equal to the states the laws of which are being set aside by that federal statute.
2). I suppose as well that the SCOTUS would give Congress a great deal of leeway in defining equality of those relative interests, subject to some outer limit based on either Due Process (see Home Insurance v Dick (1930) or FF&C (see Bradford Electric v. Clapper (1932)).
3). I suppose that a “rendering” state’s investment in issuing a particular decision for specific litigants, applicants, licensees, permitted, etc., would be relevant to such a comparison of interests. Hence, judgments get more FF&C than statutes.
4). Finally, I suppose that states’ interests in not having their laws set aside in favor of a sister state’s laws are at their weakest when the laws in question are “private laws” intended to benefit the parties to a particular transaction. Thus, private citizens can waive their state’s contract laws through a choice of law clause but cannot waive their state’s criminal laws through such an agreement.
None of these types of considerations would have much appeal for originalists — which is why I am not an originalist.
Posted by: Rick Hills | Jul 16, 2017 10:59:41 PM
I think I agree with this entirely, as far as it goes, but I’m a little curious about what powers you think Congress does have under the Full Faith and Credit Clause to make choice-of-law rules. While the text of the Constitution isn’t crystal-clear that Congress has the power Baude, Sachs and Barnett argue, it does seem crystal-clear that it has some sort of power in this area. What do you think of the examples they give in their letter? I agree with you that it’s perfectly permissible to read the clause to give Congress less power in the way of enacting choice-of-law rules than it does as far as making rules about the law of judgments, so take the one example they give concerning actual laws. As they put it, perhaps overstating the case a bit, “the Full Faith and Credit for Child Support Orders Act requires certain state child support laws to be given their full effect in every other state. See 28 U.S.C. 1738B(h).” If you go to 1738B(h), we find this fairly unintrusive choice-of-law rule:
(h) Choice of Law.— (1)In general.— In a proceeding to establish, modify, or enforce a child support order, the forum State’s law shall apply except as provided in paragraphs (2) and (3). (2)Law of state of issuance of order.— In interpreting a child support order including the duration of current payments and other obligations of support, a court shall apply the law of the State of the court that issued the order. (3)Period of limitation.— In an action to enforce arrears under a child support order, a court shall apply the statute of limitation of the forum State or the State of the court that issued the order, whichever statute provides the longer period of limitation.
Do you think 1783B(h) is constitutional, and if so, is it because it concerns the enforcement and interpretation of a preexisting judgment, because it generally respects the forum state’s law subject to certain modest accommodations to the rendering state’s law, because it’s non-criminal (though domestic-relations law is, I take it, traditionally pretty local – there’s even a domestic-relations exception to federal jurisdiction), or something else?
Posted by: Asher Steinberg | Jul 16, 2017 9:18:15 PM
Seventh Circuit Judge Diane Wood issued a fed-up in-chambers opinion, calling out two appellees, including Jeff Sessions, for inadequate jurisdictional statements. The order called out appellees for failing to state in their briefs that the appellants’ jurisdictional summary was both “complete and correct” (both appellees certified only one but not the other) and struck appellee briefs in two cases–one by Sessions (or DOJ) and one by the Airline Pilots Association.
Judge Wood identified routine problems with appellants’ jurisdictional statements that appellees waive away; many are common problems in the jurisdictional statements in district-court pleadings that I discuss in class:
in federal question cases where jurisdiction depends on 28 U.S.C. § 1331 , the failure to specify the particular statute or constitutional provision at issue, and in diversity cases, failure to distinguish between citizenship (required by 28 U.S.C. § 1332 ) and residency (irrelevant) and, for organizations such as partnerships, LLPs, and LLCs, the failure to work back through the ownership structure until one reaches either individual human beings or a formal corporation with a state of incorporation and a state of principal place of business.
This is worth sharing with students, who often do not recognize or accept how important these details are. (I also use an Easterbrook opinion, in which he sanctions both sides for botching jurisdictional treatment of LLCs–Update: Per a request, the Easterbrook opinion is Belleville Catering v. Champaign Marketplace from 2003).
Posted by Howard Wasserman on July 12, 2017 at 07:14 PM
This is silly. The Seventh Circuit seems to be the only one with this requirement. If the other circuits can manage without the appellee expressly confirming that the appellant’s jurisdictional statement is complete and correct, maybe the Seventh Circuit should learn to also.
Posted by: biff | Jul 16, 2017 12:50:24 AM
My point, to remove all attempts at being funny, is that the number of practitioners who will read this exasperated Order is much smaller than the number of practitioners who would read a bolded and scary sentence in the Circuit Rules.
Also the idea of having to resubmit a brief is overkill. Wasted paper. If necessary, have the Deputy Clerk send out a docket entry requiring the offending appellee to submit a letter containing the two magic words.
Posted by: Sam | Jul 15, 2017 11:12:24 AM
Why not worry about all appellees? Does the court not care about jurisdiction in all cases? They struck one institutional/repeat litigant’s brief, and one brief of an association that may not be a repeat player but can certainly afford to file a modestly corrected brief. Hopefully treating these two institutional/semi-institutional litigants in this way will encourage everyone to follow this actually quite important rule. I would probably go further and strike any brief that doesn’t follow the rule in any case where jurisdiction could possibly be at doubt.
Posted by: Asher Steinberg | Jul 14, 2017 12:33:35 PM
If the Court is only worried about repeat appellees, significant institutional litigants, this is fine i guess. Get the message out through Howard Bashman. But those litigants don’t constitute the bulk of the “problem,” I would guess.
Posted by: Sam | Jul 13, 2017 11:06:47 PM
Wood seems entirely reasonable here. Significant institutional litigants should be able to get jurisdictional statements right. If they don’t, the court has to spend valuable time ferreting out whether the flawed statement is the result of ineptitude or indicative of a real problem. And litigants should want to avoid submitting briefs that cause unneeded distraction anyway.
Posted by: Curmudgeonly Ex-Clerk | Jul 13, 2017 9:01:11 PM
What form would this displeasure in the Circuit Rule take? This seems like an effective, harmless, and relatively low-cost way of getting repeat appellees at the Seventh Circuit to remember to point out jurisdictional defects.
Posted by: Asher Steinberg | Jul 13, 2017 7:25:10 PM
Yes this is silly. If the Court REALLY thinks it’s necessary to have both parties “incentivized” (horrible word) to take a hard look at jurisdiction at the appellate level, then put something in the Circuit Rules that says “If we find that there was no jurisdiction because of something that Appellant overlooked and that Appellee didn’t catch, then both sides are subject to our displeasure, not just Appellant.” But the idea of requiring resubmission because the brief says “correct” or “complete” but not “complete and correct” is classic robe-itis.
Posted by: Sam | Jul 13, 2017 6:33:10 PM
I added a link to the Easterbook opinion.
Posted by: Howard Wasserman | Jul 13, 2017 12:26:28 PM
I’d sympathize with Judge Wood’s order more if the defects were in the appellant’s brief. But the order seems a bit mountain/molehill as applied to appellees’ briefs. After all, the court has an independent obligation to assure itself of jurisdiction no matter what the appellee says, and, given that the appellees’ briefs in these cases are pretty much understandable even if they don’t use the magic words insisted on by Judge Wood, it’s hard for me to understand what the use is of forcing resubmission with those magic words.
Posted by: Scott Dodson | Jul 13, 2017 11:53:09 AM
Mind linking to the Easterbrook opinion?
Posted by: John | Jul 13, 2017 11:35:12 AM
Here is an interesting diversity jurisdiction puzzle, for anyone looking for one (and you know you are).
Penn State sued Bob Shoop, its former defensive coordinator, to recover close to $ 1 million on the buyout clause, after Shoop left PSU to take a similar job at Tennessee. Penn State filed in Pennsylvania Commonwealth Court, then Shoop removed to the Middle District of Pennsylvania, based on diversity. And this confused me. Penn State is a state university. And a “state” is not a “citizen of a state” for diversity purposes; when a state brings a non-federal claim against a citizen of another state to federal court, original jurisdiction rests with SCOTUS (concurrent with state courts). The case thus should not be removable, because the district court lacked subject matter jurisdiction. This looked to me on all fours with a case from about ten years ago–involving West Virginia University’s attempt to enforce a buyout clause against its former head football coach–in which the university filed in its state courts and the coach removed, but the district court remanded for lack of jurisdiction because the university was the state.
It turns out that Penn State (along with the larger public universities in Pennsylvania, such as Pitt and Temple) is a “state-related” university, as opposed to a state university. Although I am not sure of all the differences, state-related universities receive less funding and are entities created by state law that maintain affiliations with the state (sufficient to make them act under color for Fourteenth Amendment and § 1983 purposes), but are not treated as alter-egos of the state. District courts in Pennsylvania have held that Pennsylvania’s state-related schools do not enjoy Eleventh Amendment immunity.
This matters because most circuits use the same analysis to identify an entity as an arm of the state for Eleventh Amendment purposes as for § 1332 purposes–that is, if an entity is an arm of the state entitled to Eleventh Amendment immunity, it is an arm of the state and not a citizen of the state for diversity purposes. That is how the federal court involved the West Virginia case. Because the prevailing view is that Penn State does not enjoy Eleventh Amendment immunity, it should follow that the district court has jurisdiction in this case.
I am curious to see if Penn State at least tries to move to remand or if it knows it will lose on the point. A recent possible comparison is Haywood v. University of Pittsburgh, a suit brought in federal court by–you guess it–the former football coach. Haywood included three claims–two for breach of contract (with jurisdiction under § 1332) and one for a violation of due process (with jurisdiction under § 1331); Pitt did not contest jurisdiction and the court reached the merits. This would suggest that a state-related university can be sued in federal court on diversity. But Haywood may be of limited use. The due process claim gave the district court original jurisdiction, with supplemental jurisdiction over the state claims, all regardless of diversity (Haywood did not assert § 1367 in the Complaint, which may just be unwise drafting). So it may have been that Pitt knew there would be jurisdiction anyway, regardless of the basis, so there was no point in contesting. The Penn State case squarely presents the question of the university’s status for § 1332 purposes.
Posted by Howard Wasserman on July 11, 2017 at 10:36 AM
With all due respect, I was simply referring to the fact that because the NCAA has recently change their rules and regulations in regards to deceny, they have in essence, voided all their contracts, regardless of state or the state actor’s location.
Posted by: N.D. | Jul 15, 2017 12:35:26 PM
With all due respect, I was simply referring to the fact that because the NCAA has recently change their rules and regulations in regards to deceny, they have in essence, voided all their contracts, regardless of state or the state actor’s location.
Posted by: N.D. | Jul 15, 2017 12:35:26 PM
Jerry Sandusky was the defensive coordinator who committed those predatory and heinous acts, for which he now is in prison. The defensive coordinator who PSU is suing in *this case* is Bob Shoop, who only committed the heinous act of taking a non-head-coaching position at another college.
Posted by: Howard Wasserman | Jul 15, 2017 12:24:23 PM
Professor Wasserman, those acts that particular Penn State defensive coordinator was accused of were indecent, predatory, and heinous.
https://www.merriam-webster.com/dictionary/decent
https://www.merriam-webster.com/dictionary/predatory
Posted by: N.D. | Jul 15, 2017 12:14:44 PM
N.D.: I think you have the wrong Penn State defensive coordinator.
Posted by: Howard Wasserman | Jul 15, 2017 11:28:46 AM
The state-related universities in Pennsylvania are state actors for 14th Amendment and § 1983 purposes–so Temple, Pitt, and Penn State all can be sued for violating due process or free speech.
These universities are like municipal corporations or other local governmental entities–they are public for constitutional purposes, but not arms of the state for purposes of, for example, the 11th Amendment or § 1332.
Posted by: Howard Wasserman | Jul 15, 2017 11:28:15 AM
I am wondering what the status is of any contract that requires one to abide by NCAA rules and regulations.
http://www.businesslawbasics.com/chapter-18-contract-law
“Covenant of good faith and fair dealing. One type of guaranty similar to an implied warranty is the covenant of good faith and fair dealing. This covenant is an obligation between all parties of a contract that they act with good faith (i.e., deal honestly and fairly)[26] towards each other, and not seek to take unfair advantage of their contract partners. Under common contract law, the covenant of good faith and fair dealing attaches to all contracts, and cannot be waived or disclaimed under any circumstances.[27] In most U.S. jurisdictions, breach of the covenant of good faith and fair dealing may form an independent cause of action even if the express terms of the contract have not, strictly speaking, been violated.”
http://www.washingtontimes.com/news/2017/feb/7/ncaa-threatening-pull-more-championships-north-car/
“Illegality and unconscionability. A contract is void if it requires the performance of an act that violates a relevant law, such as a statute or regulation.”
“In Pennsylvania, it is against the law to commit indecent exposure. Indecent exposure occurs if a person exposes his or her genitals in any public place or in any place where other people are present in circumstances that he or she knows or should know that the exposure will likely offend or alarm others.”
Posted by: N.D. | Jul 15, 2017 11:11:19 AM
What’s the significance of being “state related” for civil rights purposes? Specifically, with all the free speech stuff going on, state universities are bound by the Constitution, while private universities are bound only by whatever promises they’ve made. Where do state affiliated universities fall?
Posted by: Derek Tokaz | Jul 14, 2017 8:48:33 PM
Penn State, Pitt and Temple are “state affiliated institutions,” making them private entities for many purposes — most especially, in PSU’s case, for open records purposes. I suspect that’s why you won’t see that argument in PSU’s case and didn’t see it in Pitt’s. None stands exactly in the shoes of “the state” the way, for example, Shippensburg State University would.
Posted by: JEC | Jul 14, 2017 5:52:11 PM
I’m grateful to Rick for the mention of my piece Positive Pluralism Now, a review of John Inazu’s fine and very well- and widely-noted book Confident Pluralism: Surviving and Thriving Through Deep Difference. As a book review, my just-published piece suffers from the usual potential SSRN black hole: my experience, at least, is that SSRN is inconsistent in its treatment of book reviews but generally prefers not to put them on the main, searchable “list”. What’s more, it lacks even a Solum-ready abstract. So I want to offer a summary of the review, which is an attempt to use the book as a vehicle to think about issues that have interested and worried me for some time, both before and after the election.
First, although this is a critical review of John’s book, it’s not a dismissive one. I write:
If a new literature of pluralism emerges in this culture-war cycle, Professor John Inazu’s Confident Pluralism: Surviving and Thriving through Deep Difference is likely to be one of its key texts. Inazu’s book is blissfully short, clearly written, aimed at educated general readers rather than academic specialists, and underwritten by personal experiences that cross standard culture-war lines. Confident Pluralism is necessary reading for anyone who is frustrated by the belligerence and inflexibility of the current discussion and looking for ways for different deeply held perspectives and tightly knit communities to survive and thrive. . . . Confident Pluralism is a good and valuable book.
What I find especially important about the book is
the fact of Confident Pluralism. Like other expressly pluralist interventions, it comes at a moment, during one of our recurring culture wars, in which debate hardens around the poles and those poles move ever farther apart. The culture-war cycles tend to subside. . . . But they always come back. In or around each cycle, a pluralist intervention also occurs, and these interventions have provided some of the richest and most inspiring literature, offering a welcome alternative to the tedious trading of blows between left and right, even if they have made relatively few converts.
Those are the positives, and they are sincerely meant. I am a strong believer in pluralism not just as a social fact, one to be “managed” as if it were a nice but dangerous demographic incident, but as a good in itself. As the review makes clear, and as my friends Rick and Marc DeGirolami pointed out in tough comments on a draft, whether there is such a thing as pluralism as an end in itself and whether it is a good thing in itself are difficult questions, and I only make some headway on these questions, despite having tried to address it at least once before. This is my stab at it here:
I believe there is something to the possibility of arguing for pluralism as a distinctive positive good rather than a mere “claim of descriptive sociology” to be managed. There is a real difference between an approach that treats equality (or liberty) as the good to be realized, leaving pluralism to be slotted into or reconciled with that master value, and an approach that starts with pluralism as a positive feature of our society and treats liberty and equality as factors to be weighed and considered as means of helping pluralism itself flourish. At the least, it moves away from the “logic of congruence” and an overly state-centered approach to our social and political structure. And it demands suppleness about the different meanings of “liberty” and “equality” themselves, and about the possibility that the “official” legal versions of these values do not apply everywhere or with equal strength or meaning in different legal and non-legal contexts.
That said, I have two questions or criticisms about the book, one specific to John’s project and one more general, although the two are clearly related and both are related to current events. The first is substantive. I argue–against my own intuitions and desires, to be sure–that “pluralism as a positive approach—as a good in itself, rather than a descriptive fact or a “technical problem . . . to be managed”—faces serious questions and difficulties. . . . [T]hese questions remain largely unanswered in Confident Pluralism because of Inazu’s strategic refusal to stake out a more distinctive and forceful theoretical position on pluralism itself.” On the one hand, that strategic (if I am right to call it that), least-common-denominator approach has been a success: More so than most law professors’ books, John’s book has received a wide, enthusiastic, and eager reception–although one may worry that it has reached only the kind of “reasonable” audience that already believes in its principles rather than made new converts to pluralism. On the other, it leaves many questions about both the basis for and the application of the “confident pluralism” he describes.
The second question, one that in fairness was beyond his doing, is one of timing. I write:
From an optimistic perspective, Confident Pluralism is perfectly timed, coming when the culture war is at its height and a solution is all the more welcome. A more pessimistic reading of our situation, however, is that the book is already too late. To be effective, pluralist interventions in a culture-war cycle require a very specific hospitable environment. The intervention must come when there is enough heated disagreement to make an alternative to the shouting seem attractive. But it must also occur while both sides agree that there is a war, and think of either side as having a serious chance of winning it, leaving them amenable to compromise and coexistence. That is a pretty small window—and it may already have closed. . . .
A big part of this question of timing, and a phenomenon that has wreaked havoc with all general articles about constitutional law and theory written between last summer and this one, is what I call “one final, crucial data point[:] the short-fingered data point whose swift political rise so rudely interrupted our good old-fashioned on- and off-campus culture wars. Its name, of course, is President Trump.” Trump, in this view, is both an exemplar and beneficiary of the culture wars and a disruption to the routine course they were taking in locations like university campuses, which might in time have led to the usual drop-off in interest in those fights. Now I am left uncertain about what will happen next, but think it means that however needed Inazu’s book might be now, it is less likely to find ready takers:
Trump’s victory suggests . . . [that] the urging of a liberal “hard line” and the rise of an anti-elite conservative populist movement [ ] are closely connected. That victory simultaneously disrupted and entrenched the culture wars. It suggested that neither side was interested in the kind of compromise and coexistence that Inazu advocates, at least as long as victory was in prospect. And now that the pre-election expectations of the elite culture warriors have been upset in ways that might counsel compromise, there is a good chance that both sides will either double down or head to the barricades on other and bigger issues rather than coming together. . . . Inazu’s book thus comes along at a moment when it is simultaneously most needed and least likely to make new converts to the pluralist cause.
There is a lot in the review about culture wars, “political correctness” (and debates over whether it exists), lumping and splitting, the cyclical nature of both culture-wars and pluralism as a response to them, the “meaning” (if any) of Trump’s election, and the (short-lived?) recommendation to abandon “defensive crouch liberal constitutionalism.” There are very few answers. I hope some of you read it and even enjoy it–and I hope many more of you take a look at John’s excellent book.
Posted by Paul Horwitz on July 11, 2017 at 09:25 AM
It is important to note, when you compromise truth, including the truth about the essence of the human person, who, from the moment of conception, Has Been Created in The Image and Likeness of God, equal in Dignity, while being complementary as a beloved son or daughter, Willed by God, worthy of Redemption, you will always end with error. One cannot add, subtract, or change an element of truth without ending in error.
The General Law of applicability is that regardless of one’s status, or one’s desires, all persons have the inherent Right to be treated with Dignity and respect in private as well as in public.
The problem with a plauralistic society that denies that absolute truth exists is that often times truth becomes relative to one’s own personal opinion. Subjective truth leads to moral indifference, as it is no longer God Who Declares what is Good.
When law becomes merely symbolic, more abstract, and less defined, those truths that are self evident, can easily go from being objective truths to subjective truths, that are no longer secured and protected.
“Since [the powers that be] do not admit that one can defend an objective criterion of good and evil, they arrogate to themselves an explicit or implicit totalitarian power over man and his destiny, as history shows… In this way democracy, contradicting its own principles, effectively moves towards a form of totalitarianism.”- POPE JOHN PAUL II, Centesimus annus, n. 45, 46; Evangelium Vitae, “The Gospel of Life”, n. 18, 20
Posted by: N.D. | Jul 14, 2017 7:47:34 PM
Thanks for this. On 1, I’ll look forward to reading the piece and not venture any predictions for now, other than the following: 1) defensive crouching *might* look more attractive after another Justice, if there is another Justice; 2) as I note in the review, it is *possible* that people might double down, reaching harder for hardcore audiences than trying to make new ones. Debates over what the DNC ought to consider acceptable candidates are one possible example of this; 3) I suspect that whatever happens, for most people the shift will be more responsive and unconscious than strategic or thought-through; the justifications will come after the fact and the likelihood of recognizing that there has been a shift in position will be fairly small.
On 2, I suppose you’re right about my limits, although I did name my son Isaac and I am not unsympathetic to Abraham’s obedience. And I agree not so much that this point eliminates the possibility of pluralism’s value as such, but that one does inevitably end up in the realm of management. I suppose I’d still say I *think* it matters that one starts with it as a good and ends up with managerial issues, as opposed to thinking of it as a problem from the beginning and/or prioritizing particular individual values, such as equality or liberty, from the start and treating pluralism as the spanner in the works of those privileged values. I do think starting from pluralism as a good suggests more balancing and fewer categorical exclusions–and that the trend these days in my area (not without good reason other than the fact that many now prioritize equality so heavily) is toward categorical exclusions and not balancing. But these are tentative thoughts and I agree in any event that I have hardly made conclusive arguments for pluralism as a good in itself. As I noted above, Rick and Marc have both been excellent skeptics and interlocutors on this point.
Posted by: Paul Horwitz | Jul 11, 2017 11:49:03 AM
!. Not so short-lived — I have a short piece coming out In Indiana on “Utopian Constitutional Theory for Progressives.” 2. I wonder about pluralism’s value as such: “Surely” you don’t think that cannibalism and human sacrifice are within the acceptable pluralist universe (and what about David Koresh and Jim Jones)? And, once you put some constraints on what’s acceptable within the pluralist universe,I think you may well be in the world of technical management. [I haven’t read the full review — I damp down my SSRN reading when I’m not in Cambridge, and have been tapering off my reading generally, in contemplation of retirement.
Posted by: Mark Victor Tushnet | Jul 11, 2017 9:45:46 AM
Two new (to me!) papers to read this morning: Here is Paul Horwitz reviewing John Inazu’s recent book, Confident Pluralism, and here is Steve Smith’s contribution — “Against Civil Rights Simplism: How Not to Accommodate Competing Legal Commitments” — to a conference at Yale last January.
Posted by Rick Garnett on July 11, 2017 at 07:58 AM
Between more productive uses of my time, I’m hoping to circle back and comment on a few interesting things I read last week. I very much hope to get around to this post by Mark Tushnet on the obligations of those who comment on contemporary political issues. (I am deliberately generalizing from the more specific question addressed in his post.) Like many of Mark’s best posts, I consider it interesting, provocative, and well worth reading– even or especially if I disagree with it, as I do in this case.
For now, let me discuss another fun item from last week: this dialogue on Slate (sorry!) between judges Richard Posner and Jed Rakoff on the question whether there should be age limits for federal judges.* Posner says yes: “I believe there should be mandatory retirement for all judges at a fixed age, probably 80.” (Posner is 78.) Rakoff disagrees, and as the conversation proceeds Posner gets more Posner-y and Rakoff gets increasingly “taken aback” by Posner’s musings, so much so that he uses the fierce ejaculation “Jeepers.”
A longtime fan of Posner, I have nevertheless (and in keeping with what I think is a proper Posnerian approach; to hero-worship Posner is really a form of anti-Posnerianism) disagreed increasingly with his recent writings, partly in substance and partly as a matter of style and restraint. Indeed, in a close connection to the subject of the Slate dialogue, I have wondered whether Posner himself is not showing recent signs of decline–a question that I suggested is unlikely to be welcome in the legal interpretive community. As Posner has argued elsewhere, the subject of aging and old age itself is often and absurdly treated as “taboo.” That’s trebly true when applied to particular individuals and when, as with Posner, that figure has of late become a darling of liberals. (The same question is relevant to Justice Ginsburg, given not only her age but her increasing propensity for extrajudicial animadversions; Posner wrote in his book on aging and old age that the aged “have less incentive to conceal egocentrism and to engage in cooperative rather than self-aggrandizing conversation.” But she too is treated by some as sacrosanct not a fit subject of the perfectly obvious questions one would ask about a parent or other aging loved one.) Not surprisingly, at least one person who disagrees in part with Posner’s comments in the dialogue has suggested that Posner’s comments reinforce his point about the need for mandatory retirement.
I note my own previous questions about Posner’s aging because, in my view, Posner is in fine form in this dialogue, and, to paraphrase an earlier post of mine, is much more right than wrong. Conversely and even more so, Judge Rakoff is much more wrong than right. Rakoff offers a number of defenses against mandatory judicial retirement ages. He argues that a number of federal judges “have served with great distinction into their 80s.” He writes: “I respectfully disagree that Supreme Court justices don’t improve with age; on the contrary, many of them gain a broader perspective than they had when they went on the bench, and this enables them to pierce through the technicalities of which Judge Posner complains, so they can see the woods instead of the trees. As Justice Holmes so famously said, ‘The life of the law has not been logic: it has been experience.'” He asserts that “in every country of the world, it has been the lawyers who have been in the forefront of confronting despots and promoting liberty.” And he winds things up with this: “I’m sorry, Judge Posner, but in my mind, a love of the law and a love of liberty are inextricably intertwined.”
With all due respect to Rakoff, these statements are classic examples of what Posner likes to call “Law Day rhetoric”–the stirring language and windy invocation of broad but non-specific values that lawyers and judges use when reminding themselves and others of lawyers’ vital importance . It’s not that there’s nothing to such values or statements. Motherhood and apple pie are both good things. But speeches invoking mom and apple pie don’t tell us much about either. I would much rather live in a society with whatever “the rule of law” is than in one without it. But I’m not much impressed by general statements of this kind. In every sentence quoted above, I think Rakoff is closer to persuasion by cliche than to serious argument, and the arguments, such as they are, are more wrong than right.
1) The fact that many judges have served with distinction into their 80s is doubtless true, but unhelpful and rather innumerate. Rakoff starts by citing what are generally agreed to be great judges in the first place, although Posner is right that their greatness is more assumed than proved and is overstated. Rakoff gives us an imprecise numerator, and no denominator. He does not ask how many previously great judges declined, sometimes precipitously, with age. He doesn’t show that those great judges remained great, as opposed to continuing to cast votes viewed by the interpretive community as great. Nor does he ask how much of the great work itself was done by law clerks, particularly in the later stages of those judicial tenures, and whether it might be cause for concern and an argument for retirement if the clerks increasingly did everything besides casting a vote. He says judges who fail are generally and gently removed by the chief judges of their district or circuit, but doesn’t prove that this is effective and sufficient, and doesn’t distinguish between judges who are clearly senile and more easily removed, and those who have simply declined enough to warrant retirement but might not be the subject of such efforts by chief judges, and might refuse under those circumstances.
2) The assertion that Supreme Court justices “improve with age” comes not only with no denominator, but no evidence of any kind. I doubt its truth. I especially doubt the notion that they “gain a broader perspective” with increasing age. I think that is definitely true, but only up to a point. A judge may learn a great deal from ten or twenty years on the bench, because of the variety of cases she hears. (And the parties she encounters; but even district court judges are going to hear more from the lawyers than the parties. What parties do the Justices encounter personally?) But there is no reason to think that the learning curve is lifelong, or that it outweighs the eventual effects of decline, which may include fixity of views, tunnel vision, and other deficiencies. And there is something strongly lacking from this picture of judges gaining breadth of “perspective” and, to use the word from Holmes that he quotes, “experience” over time. Other than the variety of cases they hear, judges live cloistered lives; many judges complain in their memoirs and elsewhere about having to give up friends, associations, and other connections to the wider world. And it’s a pretty privileged and princely cloister. It didn’t take very much time as a law clerk for me to notice the air of deference and insulation from inconvenience that surrounds federal judges: the generous per diems, the potential for flattery from lawyers, law clerks, law schools, and bar associations; the habit of being called “Your Honor” by most of the people around them; the marshals waving them through the fortress of parking gates and detector machines in the courthouse. And that wasn’t even at the Supreme Court level, which involves that level of deference, flattery, and insulation multiplied a hundredfold. The idea that judges eventually “see the woods instead of the trees” is dangerous enough on its own, since the trees are sometimes called statutes, precedents, procedural rules, and so on, and the woods sometimes amount to free-ranging views on politics and policy. But it’s especially dangerous when combined with decades of relative isolation surrounded by legal courtiers. That’s a recipe for hubris and judicial overreach, not “perspective.” (Perhaps unfairly after that sentence, I note that Rakoff’s relatively recent and now-frequent contributions to the New York Review of Books consist of broad-brush prescriptions for reform of the criminal justice system, the abolition of the death penalty, and so on. The prescriptions are less important than the question whether they should be offered by judges or fought over by politicians and citizens.)
3) Spending enough time in this kind of environment can instill a tunnel vision about the relative importance of law, lawyers, and courts, as opposed to things like people, voters, and ordinary politics. Of course law and lawyers are important. The question is their relative importance, which can easily be overstated. Rakoff’s generalization about lawyers being “in the forefront of confronting despots and promoting liberty” might best be viewed in that light. Posner responds, “I would like to see some evidence for this proposition, which strikes me, frankly, as preposterous.” Preposterous? I don’t know. Almost certainly vastly overstated? Definitely. And Rakoff’s peroration about “a love of the law and a love of liberty” tells us nothing about either, and anyway has nothing to do with the possibility of judicial decline and the advisability of judicial retirement.
Posner has drawn the most heat for this statement in the dialogue: “It’s not true that . . . a decision must be supported by ‘reason,’ whatever that means exactly, to avoid lawlessness; personally, I prefer common sense to ‘reason.'” I don’t know whether the criticism counts as ironic, insofar as I see some of the adoring praise for some of his recent decisions as having more to do with their values and outcomes than the actual “reasons.” I do think there are good grounds to worry about such a statement, especially from one who was criticized last year for what was taken to be a rather free-wheeling view of constitutional interpretation and followed it up this year with an opinion suggesting a fairly free-wheeling view of statutory interpretation. Without taking a view on any of that, I still think he is far more right than wrong in this dialogue–especially about the actual matter under discussion: the question whether there ought to be a mandatory retirement age for federal judges. But even that sentence is not half as objectionable as its critics suggest. I do think Posner’s work on the bench has become too free-wheeling. But I also think that while providing reasons is a fundamental part of the American judicial process, it is easy to turn respect for “reason” into idolatry, to think the “reasons” themselves do or mean more than they actually do, and to treat “reasons” as necessary while ignoring the question whether they are sufficient. (They are not: common sense is necessary as well, even if channeled through procedural rules, textualism, and other mechanisms, and even carefully elaborated and logical “reasons” are not necessarily reasonable.)
Given that I’ve criticized Posner in recent years and suggested, not that he is unfit or hugely affected by age, but that it is not wrong to ask such questions, I’m happy to find him in such excellent form in this dialogue.
* As a side note, Posner was slated (so to speak) to be part of Slate’s Supreme Court Breakfast Table this year, at least according to the first post. Unless I’ve missed it, I don’t think he ended up contributing anything this year. Since I generally find him the only seriously interesting contributor sitting at the “Table,” I was sorely disappointed by his absence.
Posted by Paul Horwitz on July 10, 2017 at 12:11 PM
Anyway, R Posner, J. is a great guy. A lot of fodder, from his judgements, to my articles mill.
Posted by: Bapoo M. Malcolm | Jul 13, 2017 5:16:30 AM
Wish I had the time to read all of it. Sad.
Posted by: Bapoo M. Malcolm | Jul 13, 2017 5:09:26 AM
I’m not going to defend Rakoff’s pablum. And if I thought Posner had merely become acerbic in response to Rakoff, I’d give Posner a pass.
But for years now Posner has been telling anyone who’ll listen exactly what he believes and it is inconsistent with any reasonable understanding of the role of appellate judging. Posner bridles at any constraint on his own power to make (what he perceives to be) wise decisions. In Hively v. Ivy Tech Community College, he openly advocated the judicial updating of statutes “to avoid placing the entire burden of updating old statutes on the legislative branch.” In Mitchell v. JCG Industries, he made his own fact-finding beyond the appellate record as confirmation of his “common sense intuition.” These are just two recent examples, and his current remarks in Slate are more of the same. When Posner says much of the law is “antiquated crap” that a judge need not concern himself with, he means it; the proof is in the Federal Reporter. His remarks about life tenure and Article III are not intended as a provocation or a thought experiment; he genuinely sees Article III and its longstanding interpretation as no obstacle whatsoever to his proposal regarding mandatory retirement. This is the same Posner who previously wrote in Slate that he sees “absolutely no value” in the study of the Constitution. Precedent? Posner quipped, “let’s not let the dead bury the living.”
Posner does not provide a corrective to Rakoff’s sentimentality. Posner only has on offer an equally indefensible approach.
Posted by: Curmudgeonly Ex-Clerk | Jul 12, 2017 11:06:12 AM
CEC, I am not at all unsympathetic to your last sentence. That said, his greatest value over time, in my view, is precisely in making arguing arguments that are normally not only dismissed out of hand, but not made at all. As I said in the comments and believe, lawyers and law professors routinely insist that they are realists, but are routinely romantics, with a long list of suppositions–especially self-serving ones–that are dismissed so thoroughly and treated as so unspeakable that various propositions about “the rule of law” and so on often more closely resemble The Book of Common Prayer than to testable or debatable ideas. That I do not always agree, and sometimes strongly disagree, with particular arguments or assertions he has made, and that he has often been treated as a hero (by the right, then the left) while being held carefully at arm’s length and suspected as “unreliable,” does not for me diminish the value of that approach or the overall number of valuable questions he has pushed within our professional and interpretive community. There is surely some exaggeration and not a little romanticism in this paragraph, I confess. But I do think he is (at his best) tremendously valuable and for roughly this reason, and I do think too many lawyers and law professors are too romantic and fixed about particular values–phrases, really–that ought to be pushed at.
I think I addressed adequately my ambivalence about at least (2) and (3) above; I don’t, for instance, reject the need to provide reasons, but I do think–surprisingly, given our soi-disant realism and post-this-and-thatness–that we tend to treat reasoned elaboration in an unduly idolatrous fashion. And I will flip your question a little and suggest, as I do in my post, that the things Rakoff says in his side of the dialogue are more or less literally “sentiments” that we are supposed to *accept* out of hand and shouldn’t.
Posted by: Paul Horwitz | Jul 12, 2017 8:50:25 AM
In the linked piece, Posner opines that:
(1) Article III need not and should not be read as conferring life tenure on judges, notwithstanding that this is exactly how it has long been understood;
(2) bright non-lawyers could do just as good a job as Supreme Court justices as well-credentialed lawyers because only their law clerks need to know the “antiquated crap” that is the law; and
(3) legal decisions need not be supported with reason but instead could be resolved with common sense.
Wouldn’t we dismiss these sentiments out of hand if expressed by someone not named “Posner”? Increasingly, Posner is granted a hearing only because one political faction celebrates some of his more recent decisions and the reputation a much younger Posner rightly enjoyed.
Posted by: Curmudgeonly Ex-Clerk | Jul 11, 2017 11:38:53 AM
I’m in the middle on the “non-lawyer point”: I think the problem is not with “all lawyers,” but with “all lawyers whose background — especially, but not only, their undergraduate education and straight-from-undergrad-to-law-school progression — is narrowly the same.” We just don’t appoint/elect judges from the small subset of lawyers who would be comfortable in (and able to ask intelligent questions because they’d worked in/around one before law school, even if years before) a research laboratory, or a refinery, or an automobile assembly line, or a parade ground, or an emergency room, to name just a few bits of foreign territory.
I can accept Justice Scalia’s lament that he, personally, didn’t understand either the basic (theoretical) science or the bench-machinery technology behind DNA testing in a case before him that was overtly about the law of evidence; no one can know everything. However, it is simply not acceptable that not a single judge who heard the matter — not just his colleagues, but the entire chain — was really any better off. “Diversity” means more than gender and religion and skin color… especially when one must make decisions based upon “diverse” fact patterns. “Inspiring personal stories of overcoming the odds” only go so far against ignorance, even the ignorance of just “I’ve never been there and now I have to guess about what it means.”
Posted by: C.E. Petit | Jul 11, 2017 11:23:53 AM
Thanks for the comments.
You (or, more accurately and in my adopted Southern locution, y’all) are right that I don’t talk about the non-lawyer point. I’m not sure I agree with it. I’m not outraged by it. Conversely, one thing that might outrage others about it, and therefore delight me, is that it would point to the degree to which, as with any increasingly complex and bureaucratized institution, judges are surrounded by aides and helpmeets who, like congressional staffers, can do much of the heavy lifting besides actually voting. It would thus deromanticize the whole idea of the judge–and many lawyers and legal academics call themselves realists but are really romantics about this and much more besides. But I’m not at all sure the good outweighs the bad. On the other hand, nominating judges who have law degrees but have spent much of their careers either doing something besides the straight practice of law–politics, among other things, but also business or at least transactional law rather than litigation–might give us a better upside mix, and isn’t far from the usual cries for experiential diversity on the bench. (I’m assuming a *mix* here. I wouldn’t want to get rid of all former criminal defense attorneys in favor of former CEOs as judges, and I assume Posner wouldn’t either.) Ultimately, though, even if I disagree with this point, I thought it relatively minor compared to the matters I did discuss.
On Chris’s point, I think even if we were fine with reversal rates as a measure (but of course there are good reasons to worry about that), it wouldn’t show all that much, given the possibility that the serious work of decision-making and -writing gets taken over by staff once a judge has reached a certain degree of decline, that the staff is competent, and that it operates more or less algorithmically according to a mix of the judge’s past decisions and current precedent. That’s why I think Rakoff’s reassurance that chief judges can gently ease out superannuated judges is not very convincing. Now, this might be a reason to care less about mandatory retirement altogether. I leave that for others to argue over. But I do think it makes measuring decline more difficult, whatever the measure–and I assume that decline means something more than just outright senility.
Posted by: Paul Horwitz | Jul 11, 2017 9:42:39 AM
Chris Lund writes: ” To the extent we accept reversal rates as a good measure of how well lower-court judges are doing their job–and I don’t mean to gloss over the difficulties with that as the measure….”
I think it’s a plausible measure for district court judges, but I’m more skeptical that it’s a good measure for circuit court judges. With a few exceptions, most circuit judges have a case they wrote taken by SCOTUS only once every few years.
Posted by: Orin Kerr | Jul 11, 2017 1:31:59 AM
It doesn’t seem like it would be too hard to study this empirically. To the extent we accept reversal rates as a good measure of how well lower-court judges are doing their job–and I don’t mean to gloss over the difficulties with that as the measure–why can’t the impact of age on judicial decisions be measured and analyzed? Maybe this has been done already; I’m not up to date on the issue.
Posted by: Chris Lund | Jul 10, 2017 9:46:41 PM
A mandatory retirement age is both over-broad and under-inclusive, as are all such discriminations. The problem isn’t age. Plenty of octogenarians are as sharp as they over were, and plenty of 50-somethings don’t have the mental acuity we’d like to have in our judges. It’s true, perhaps, that mental acuity and age are negatively correlated, but it seems far better to me to come up with a mechanism designed to weed out people who are not up to the job than to case such a wide net. I admit I don’t know what that mechanism would be at the moment but it doesn’t seem like it should be an insurmountable problem.
I would even prefer term limits to a mandatory retirement age. Those at least treat everyone equally – you get 15 years (or however long) as a judge and then you’re done. Much of the most insidious discrimination starts because people have the best of intentions but it’s almost always better to seek out the problem you’re actually trying to address than it is to use loose proxies for that thing.
Posted by: J | Jul 10, 2017 7:27:05 PM
No, his first claim was that there should be a mandatory retirement age of 80 for federal judges. I don’t necessarily disagree with a mandatory retirement age, I just dislike “your side has to provide evidence, which my side can attack as being inadequate, but my side must be taken seriously even though we’ve not offered any evidence at all” arguments.
Posted by: jph12 | Jul 10, 2017 5:53:39 PM
I don’t know that Posner makes a lot of positive claims or claims of the sort for which he could adduce evidence, and the claims he does make that are verifiable, while not supported by evidence in this short exchange, aren’t the kinds of claims for which I would expect evidence in this context. So his first claim is that “Blackmun, Stevens, and Souter were not giants. Nor was Brennan, although he was both able and influential, as indeed was Stevens…” No evidence is offered, but obviously he’s relying on his reading of the named Justices’ opinions, which I wouldn’t expect him to elaborate on here. It’s also worth noting that, while I like Souter a lot, most people would probably agree with this claim, subject to some semantic cavilling about the meaning of “giant” as applied to Brennan. He then says some things about Brennan which he supports with memories of his clerkship. He then makes a fairly plausible claim about what “during good behaviour” means. Then he says that he’s not aware of cases where judges have improved with age. Here, no evidence is given, but, unlike Rakoff’s claim that judges do improve with age, which Rakoff could give evidence for if he had some, I’m not sure how Posner’s supposed to marshal evidence that judges, at best, don’t get worse in old age. Though again I think he’s right; can anyone think of a judge who started writing materially better opinions in their seventies or eighties? Then there’s the claim that a brilliant businessman could be a good Supreme Court Justice, which does seem implausible but is also pretty impossible to offer evidence for. Finally, he says that life-tenured judges aren’t so independent that they don’t worry about reversal and criticism from politicians and others, which seems obviously empirically grounded in his own experiences in the judiciary, though he doesn’t give examples, for obvious reasons. And he says that Blackmun, Stevens and Souter didn’t improve with age, which I think is true. Rakoff seems to have brought them up as examples of judges whose views changed with age, which is supposed to show that age is valuable, but the main change in all three cases seems to have been becoming more programmatically liberal. If anything, I think Blackmun and Stevens became less thoughtful, and certainly more predictable, jurists as they aged; while I’m sure a lot of people were glad to have picked up Blackmun’s vote in the 80s and early 90s, evolving into the kind of judge who wrote “Poor Joshua!” and wrote a concurring opinion just to remind voters that abortion was on the ballot in the 1992 presidential election probably isn’t something that many people see as a positive development. Becoming less thoughtful, more extreme and predictable versions of themselves is something a lot of older judges and indeed thinkers of all sorts seem to experience; Posner, as Professor Horwitz alludes to, is himself a marked example of this
Posted by: Asher Steinberg | Jul 10, 2017 5:01:25 PM
“The assertion that Supreme Court justices “improve with age” comes not only with no denominator, but no evidence of any kind.”
Which differentiates it from Posner’s claims how, exactly?
Posted by: jph12 | Jul 10, 2017 4:14:56 PM
Benji, I’d argue that a more logical structure would be to set a mandatory retirement age for judges at 75, starting with those confirmed after the passage of the requisite constitutional amendment. I don’t know that we’d want a relatively young judge have to worry about what he’s going to be doing following the end of his fixed term.
Posted by: PaulB | Jul 10, 2017 2:36:32 PM
What about a maximum age a person can run for office? Say, no one over 60*, can run for federal elected office or accept a judgeship? And then have a 12-year term-limit for all offices?
*or who otherwise would be eligle for social security (based on age alone) during their tenure
Posted by: Benji | Jul 10, 2017 12:47:55 PM
Thanks to all our June/early-July guests for their participation in the End-of-Term Symposium. I hope to make this an annual event, especially as future Terms prove less quiet and undramatic.
All complete posts (in reverse chronological order) can be found here.
Posted by Howard Wasserman on July 10, 2017 at 09:31 AM
About the police department policy, in the first place I’m genuinely unaware of law either way on whether a police department’s legal opinion, reflected in some department policy, is sufficient to clearly establish the law. What if the department’s opinion is arguably wrong under circuit precedent, or what if the department’s opinion adopts one side of a circuit split (which I know is not the case here, but I’m not so much interested in this case as the role department policy generally plays)? Assuming that department policy can clearly establish the law in the way circuit precedent can, I agree that the standards for qualified immunity and municipal liability are different; here, however, it seems that no one was aware of the policy, not just that it was ineffective. Now, if department policy is just like circuit precedent, about which we have the legal fiction that a reasonable officer knows all about what circuit precedent says, then I suppose it doesn’t matter that no one knew about the policy. But if we don’t employ that legal fiction when it comes to department policy and instead look at how police are actually trained in the department, then you end up somewhere else. I can see arguments either way; the fiction of knowledge of precedent seems to run from maxims about ignorance of the law, which department policies don’t implicate. That said, a reasonable officer should probably know more about his department’s policies than circuit precedent.
Posted by: Asher Steinberg | Jul 9, 2017 5:25:25 PM
Judge Watson in the District of Hawaii last night refused to rule on the plaintiffs’ Motion to Clarify the Scope of the Preliminary in the travel ban case. The plaintiffs, he ruled, were asking him to clarify the meaning of language in the Supreme Court’s opinion and order, not his order; that request should be directed to SCOTUS. Ilya Somin criticizes the ruling, pointing out that interpreting and applying the language of rulings from higher courts is what district courts do. Lyle Deniston questions whether there is a procedure for asking SCOTUS to clarify language in the opinion, short of a motion for reconsideration. Michael Dorf is a bit more forgiving, arguing that Watson’s ruling is not crazy, given the confusion involved when cases are moving up and down the hierarchical judicial system.
I agree that Judge Watson was wrong, for the reasons all three commentators describe. I want to make explicit one point that I believe is implicit in their posts (and that Remedies guru Doug Laycock made on a listserv): The injunction, albeit as modified by SCOTUS, remains Judge Watson’s order and it remains his duty to enforce that modified injunction. And that entails figuring out the scope of the injunction, which means figuring out precisely how SCOTUS modified it, which means figuring out what SCOTUS meant in its opinion. The trial court must do that in the first instance–SCOTUS can reverse that interpretation on appeal if it disagrees. My point is that this goes beyond the ordinary situation of lower courts determining and applying SCOTUS precedent to a new case or even to the same case (for example, applying a new legal standard to evaluate the merits of the claim). This is about a district judge enforcing his own injunction going forward.
The plaintiffs have appealed the denial of the motion, presumably because this is an order refusing to modify an injunction. My best guess is that the Ninth Circuit summarily reverses and tells Judge Watson to determine the scope of his injunction.
[Update, Saturday, July 8: I want to say I was half-right. The Ninth Circuit dismissed the appeal for lack of jurisdiction, because the order did not do anything of the things enumerated in § 1292(a)(1), because it sought a declaration rather than an injunction, and because the plaintiffs could still seek injunctive relief in the district court. The Ninth Circuit added that the district court “does possess the ability to interpret and enforce the Supreme Court’s order, as well as the authority to enjoin against, for example, a party’s violation of the Supreme Court’s order placing effective limitations on the scope of the district court’s preliminary injunction.” In other words, plaintiffs filed the wrong motion. They should have moved to enforce the district court’s injunction-as-modified or to hold the government in contempt of the district court’s injunction-as-modified–and in the course of resolving those motions, the district court must decide what the Supreme Court said and meant. Presumably, that is what the plaintiffs will do in the district court. [Second Update, Saturday afternoon: Motion to Enforce, or in the alternative, to Modify]
The Ninth Circuit’s was surprisingly rigid. Courts of appeals typically take jurisdiction under § 1292(a)(1) if the order is within sniffing distance of an injunction or its enforcement. Plus, it was obvious that the plaintiffs were asking the district court to enforce the injunction according to its proper terms (based on SCOTUS modification) by determining those proper terms. In some sense, the Ninth Circuit did tell the district court it was wrong and that it did have power to decide what SCOTUS meant; the plaintiffs simply captioned their motion incorrectly. This is different than what the district court said, in directing all issues to SCOTUS.]
Posted by Howard Wasserman on July 7, 2017 at 01:09 PM
Prof. Wasserman, there seems a substantial difference (not merely a caption error) between asking for “clarification” and asking for enforcement/modification of an injunction. It seems that legal commentators were wrong to read so much into Judge Watson’s order on the former request.
Compare to Hawaii’s motion in opposition to the administration’s request for clarification back in March. The Administration sought clarification that parts of the EO not addressed by plaintiffs were in fact covered by the temporary restraining order which prevented enforcement of the entire sections including those provisions.
In its response to the Administration’s motion for clarification, Hawaii used “clarify” in scare quotes, asserting that the administration was improperly seeking a substantive change to the order. Back in March, Hawaii seemed to understand the distinction between a motion to clarify and a motion to enforce. Of course, Judge Watson was in a good position to know his own mind and whether he wrote an unintentionally overbroad TRO or not. If, as Hawaii claimed, the administration was merely using the motion to sneak in arguments to relitigate the order, Judge Watson could see that too.
In this case, the same standards should apply. For mere “clarification,” the parties should go to the court that issued the order – here, the Supreme Court. If seeking enforcement, Judge Watson should rule. I think the view expressed by Daniel is also an overreading of Watson’s ruling.
I think it fairly obvious that Hawaii styled its request as it did in order to sidestep certain showings required by a motion claiming the injunction is being violated. Indeed, now Hawaii boldly asks Watson to modify the Supreme Court’s order. That may amount to little more than an errant caption, since Watson can issue orders enforcing the Supreme Court’s injunction, effectively endorsing a more narrow or broad reading of it.
Posted by: Crispian | Jul 11, 2017 2:25:38 PM
I am not sure it is correct to say that SCOTUS holds the underlying case. The injunction remains in place and, to the extent portions of it remain unstayed, that is for the district court to control.
I think this proves Dorf’s point that a lot of this owes to the confusion built into movement of cases up and down through the judicial hierarchy.
Posted by: Howard Wasserman | Jul 8, 2017 11:30:37 AM
I think that the DJ has it correct and I am not persuaded by the nuanced reading from the 9th either. The underlying case remains before SCOTUS. SCOTUS’s order was explicitly based upon upon a “balance of equities”. Moreover, SCOTUS is not in session and won’t be again until it has time to hear the underlying case.
The result is that as a practical matter any attempt by the DJ to “interpret” SCOTUS’s order in this situation as a de facto matter /becomes/ SCOTUS’s order. That is wrong in my view. I agree that the best course of action is to let SCOTUS interpret its own order. I recognize that as a de facto matter this leaves the Administration’s interpretation of the order the law of the land. But that strikes me as legally the better solution. Because if it is really true that a judge posseses the authority to modify a SCOTUS interim order while SCOTUS still holds the underlying case choas will reign–as the old saying goes: too many cooks spoil the broth.
Posted by: Daniel | Jul 8, 2017 12:01:23 AM
Guess again.
http://cdn.ca9.uscourts.gov/datastore/general/2017/07/07/17-16366%20Order.pdf
Posted by: Asher Steinberg | Jul 7, 2017 9:14:24 PM
If you are a NYC resident with an interest in local politics, then you know that the City tends to be hamstrung by the tendency of state judges to take an oddly narrow view of the City’s legal powers that contradicts sensible readings of state law. Even odder, City leaders themselves sometimes take the view that state law leaves them powerless to act even when the text of the relevant state statutes flatly contradicts such claims of impotence.
Mayor de Blasio’s unilaterally surrendering the City’s power over its own roads and bridges Provides a case in point. Five years ago, I pushed the idea that New York City had authority under existing state statutes to toll its own bridges and roads as a means of reducing traffic congestion and funding mass transit. The argument is summarized in this op-ed in Crain’s by myself, Fritz Schwarz, and Eric Lane: To summarize, the state legislature enacted what is now codified as section 1642(a)(4) of the state’s Vehicle & Traffic Law (VTL) in 1957 conferring power on the City the power to “charg[e] tolls, taxes, fees, licenses or permits for the use of the highway or any of its parts, where the imposition thereof is authorized by law.” The term “law” here can only be sensibly construed as meaning “either state or local law”: Any other reading of the statute turns into into a meaningless tautology providing that state law authorizes tolls when state law authorizes tolls. Moreover, the historical context of the ’57 statute indicates that it was enacted in response to a Blue-Ribbon Commission’s urging that the City’s revenue powers be increased to save the City’s transit system. My view of the law has been endorsed not only by Fritz Schwarz (who chaired the charter commission responsible for drafting the City’s current form of government) and Eric Lane (who was that commission’s director and counsel) but also Richard Briffault (Columbia Law School), Clay Gillette (NYU), and Nestor Davidson (Fordham), all experts in local government law. (You can read the Memo laying out the argument in tedious detail that these luminaries endorsed here).
Yet Mayor de Blasio’s Administration adamantly asserts that the City lacks the legal power to toll its bridges as a reason to refuse to study congestion fees. As I argue after the jump, the apparent politics behind a mayor’s unilateral surrender of his own city’s legal powers suggests that paper law, however plain, is insufficient to overcome a legal and political culture destructive to city home rule.
Consider three reasons why mayors might adopt positions that practically abdicate legal powers of their own city. 1. Political cover: De Blasio does not especially want to deal with congestion fees. Although Move NY’s “home rule” plan has sensibly appealed to a wide array of interests, there are always interests on the other side. Rather than being forced to choose, it is convenient for de Blasio to plead powerlessness. Ducking for the cover of city powerlessness is just a specific instance of Daryl Levinson’s more general observation that, far from seeking to build empires, officials often want to avoid blame through inaction.
2. Choose the most inattentive master: In New York, the mayor of NYC can enjoy powers as an officer of the state even if the City lacks power as a chartered city. A case in point is the mayor’s control of city schools — a power drawn from the state Education Law that bypasses City Council and other institutions in NYC’s charter. The mayor might prefer to exercise state powers without being confined by city charter institutions, because state oversight might actually be weaker than Council oversight. After all, the state legislature is hampered by a bicameral structure, a governor, an Upstate agenda, and two political parties. By seeking authority through a special state statute courtesy of Albany, the mayor can strengthen his own executive power at the expense of the local legislature, the community boards, and other pesky overseers of mayoral power provided by the charter.
3. Choose the path of least resistance: If there is a general background norm of going to Albany to do anything unusual, then that norm can create expectations that are costly to defy, even when some specific law theoretically allows the City to defy them. Congestion fees are a case in point. I have been repeatedly asked by politicians and reporters why Mayor Bloomberg went to Albany for authorization to impose such fees if the City already had the power to enact a local congestion fee law under the existing VTL. Of course, lacking inside knowledge, I cannot answer the question definitively, but I can make an educated guess: Everyone expected Mayor Bloomberg to go to Albany, because the City generally always goes to Albany to do anything remotely novel. To resist the force of habit would be to be a bit of affront to Albany’s leaders and risk having the state legislature repeal the very statutory authority on which the City could theoretically rely. That the state legislature enacted a statute permitting the City to act on its own back in 1957 might have done little to appease former Albany power brokers like former Assembly Speaker Sheldon Silver: That power had lain unused for a half-century, the occasion for its ratification and indeed its very existence long-forgotten. Especially since Bloomberg had reason to believe that he had the votes in Albany to get what he wanted, it made good political sense for the Bloomberg Administration to follow the well-worn path up north for a new statute regardless of what existing state statutes might say.
That rationale for following political habit rather than the actual law, however, has an unfortunate if inadvertent effect: It sends the implicit message that the mayor has conceded city powerlessness. That, at least, is the most common comment I have gotten from by journalists and politicians doubtful of the city’s statutory power, even when such power is staring straight at them from the statute book.
In this way, the plain letter and spirit of actual law is overwhelmed by a conventional wisdom nonetheless powerful for having no defensible normative basis. It is the quasi-law of conventional wisdom that passes for the law in New York and plagues the City with gratuitous trips to placate politicos in Albany, even when the vast majority of affected people reside right here in the five boroughs. That it is nonsensical for city leaders to go hat in hand to beg assemblymen from Rochester and Cortland County for permission to toll a bridge that none of their constituents will ever cross does not matter. The blob of conventional wisdom, created by habit, political cowardice, or mayoral tactics obscures what the actual law really says.
Posted by Rick Hills on July 6, 2017 at 06:01 PM
I live in Brooklyn (Cobble Hill), PaulB.
Sam Schwarz’s 2015 plan for Move NY has won support from the drivers of the Outer Boroughs by proposing that the tolls on the major Outer Borough Bridges. — Throg’s Neck, Whitestone, and Triboro — be lowered to reduce “bridge-shopping” that clogs the Manhattan and Brooklyn Bridges. You can read about the 2015 plan here: http://iheartmoveny.org/wp-content/uploads/2015/02/2015-MNY-Final-Ex-Sum-copy.pdf. For a detailed look at the plan and who pays (mostly Manhattanites, who create the bulk of the East River Bridge traffic) see the full plan at http://iheartmoveny.org/wp-content/uploads/2015/02/Move-NY-Fair-Plan-150217v1.pdf.
Because NYC cannot control those MTA-owned bridges, the city-initiated plan cannot lower the tolls on those major Outer Borough bridges. Instead, the city plan would toll the city-owned bridges by the cost of a subway fare card and use the proceeds to subsidize city residents’ subway fares. Again, given that most Outer Borough commuters use the subway, this is a good deal for them. The plan has also been endorsed by the Metro Taxicab Board of Trade and the drivers’ union, and the livery cars. See. https://movenewyork.wordpress.com/2015/05/07/metropolitan-taxicab-board-of-trade-endorses-move-ny/. Taxis lose a lot of money from traffic that limits their pick-ups per hour.
Posted by: Rick Hills | Jul 6, 2017 11:02:38 PM
Rick, by wild chance, do you live in Manhattan as well as work there? What seems like good public policy to the residents of that tiny island seems very different to those who live in the Bronx, Brooklyn, and Queens. My recollection is that Mayor Bloomberg, when proposing to toll the East River bridges wanted to exempt cars belonging to Manhattan residents only to find out that there was no political support. It’s not the folks in Cortland County who are preventing this from happening.
Posted by: PaulB | Jul 6, 2017 6:33:53 PM
The Washington Post’s “Daily 202” has an article praising Republican State Secretaries of State for their “principled” stance in resisting Chris Kobach’s demand for voting data. “They are demonstrating ideological consistency in an era of rampant tribalism,” gushed the article.
But are they? What exactly does it mean to be a principled federalist? The difficulty posed by this question is that “federalism,” like “liberalism” or “conservatism,” “equal protection” or “freedom of speech,” is an essentially contested concept. There are many different conceptions of such concepts, each with a distinctive ideological spin. Federalism, for instance, comes in a “vote-with-your-feet” free-market promoting variety and a “cooperative federalism,” grant-funded variety. The former is libertarian in requiring states to rely on own-source revenues; the latter tends more Left, supporting block grants and general revenue sharing.
Suppose state Republicans “consistently” resist demands for voter data because they generally distrust the feds when it comes to citizen privacy. (One sees a similar attitude of some Red States towards DHS’s efforts to standardize drivers’ licenses under the REAL ID Act). Suppose that the very same Republican politicians enthusiastically cooperate with the feds on enforcement of immigration laws, entering into section 287(g) agreements to assist DHS in deporting unlawfully present persons. Suppose that they even ban their cities from refusing to honor DHS detainer requests. Are those Republicans just on-again-off-again fairweather federalists, or are they “principled” adherents to a particular vision of federalism in which immigration is said to be an especially “national” issue but citizens’ voting, a more “local” issue? Or suppose that a Republican demands that the subnational regulation of guns be limited by SCOTUS on the ground that the Second Amendment right to bear arms is a “national right” but supports the decentralization of abortion regulation on the ground that the Fourteenth Amendment’s Due Process clause has nothing to say about abortion. Such a stance on decentralization can be given a general theoretical account (i.e., “the definition of ‘national rights’ is properly centralized”). Does such an account count as “principled” or “opportunist”?
Since no reasonable person supports the decentralization or centralization of all issues, principled politicians must always exercise some sort of selectivity about which issues are decentralized. So here are two non-rhetorical questions, with no post-jump theory providing you, gentle reader, with any guidance on any answer. (1) Given that every theory of federalism must be selective in what it decentralizes, how do we determine whether any particular theory of federalism’s selection of decentralized issues is “principled” or not? (2) If one cannot answer (1), then should one simply dispense with “federalism” talk?
Posted by Rick Hills on July 6, 2017 at 01:21 PM
What is your evidence that it’s an essentially contested concept, rather than just a contested one?
Posted by: anon | Jul 15, 2017 3:36:19 PM
Biff asks, “what part of the Left supports block grants?”
Donald Trump’s proposed budget recommended elimination of CDBGs. My guess is that the Democrats want CDBGs to continue.
Of course, when a grant deals with redistribution of wealth to low- and moderate-income households, the Left distrusts block grants and prefers categorical (or, better yet, just a federally controlled program) for obvious reasons. In general, however, the Left has traditionally preferred intergovernmental grants, while the Right has preferred just cutting taxes and letting subnational governments fund themselves with their own-source revenue.
Posted by: Rick Hills | Jul 7, 2017 10:16:51 AM
I am pretty sure “principled” in the quoted article is simply shorthand for “not changing your tune about a particular issue when your party is in power.”
“the latter tends more Left, supporting block grants” – What part of the Left supports block grants?
Posted by: biff | Jul 7, 2017 9:22:12 AM
“Since no reasonable person supports the decentralization or centralization of all issues…”
Poisoning the well.
Posted by: YesterdayIKilledAMammoth | Jul 6, 2017 4:33:49 PM
